PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:  16 May 2000
	DOCKET NUMBER:   AR2000035803

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Van B. Cunningham		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be reinstated on active duty in his Military Occupational Specialty (MOS) 13F and that he be promoted.

3.  The applicant states that the request is made of the basis of substantive inaccuracy.

4.  The applicant’s military records show that he enlisted in the Regular Army on 8 June 1982.  He rose to the rank of Staff Sergeant E-6 on 22 November 1988 as an artilleryman, MOS 13F.

5.  In 1999, the applicant did not meet medical retention standards.  A Medical Evaluation Board (MEB) was conducted at Fort Benning which identified three diagnoses: chronic neck pain due to degenerative disk disease; carpal tunnel syndrome in his left wrist, and sleep apnea.  He was referred to an informal Physical Evaluation Board (PEB).  The informal PEB found that the applicant was medically and physically unfit for reasonable performance of the duties required of his grade and military specialty.  The PEB determined that the applicant had 10% disability for the chronic neck pain and 10% disability for the carpal tunnel syndrome disability for a total of 20% disability.  The sleep apnea was not unfitting.  The applicant disagreed with the informal PEB and requested to appear before a formal PEB.  A formal PEB was convened at Fort Sam Houston, Texas, on 29 July 1999.  The applicant did appear before the PEB.  The formal PEB made the same findings as the informal PEB and recommended that the applicant be separated with severance pay.  The applicant, by his election and signature on 10 August 1999 on a DA Form 199-1 that is in his file, concurred with the findings and recommendation of the PEB.  He did add the personal comment, “I agree with the formal hearing (PEB) and their supporting evidence to make their decision.  From my past experience as a Instructor/Trainer, I can still be an asset to the US Army here at Fort Benning on the Advanced Field Artillery Tactical Data System (AFATDS) program.  I have two and one half years of training on the system and it is due to be fielded here at Fort Benning within the next year.”

6.  The applicant was given three options by the U.S. Army Physical Disability Agency (PDA): early retirement under the TERA program (Temporary Early Retirement Authority); return to active duty; or continuation in the Active Reserves (Reserve Component members in drilling status).  On 2 August 1999, the applicant requested early retirement and also requested return to active duty. On 2 September 1999, the applicant’s request for retirement under TERA was approved with a retirement date of 31 December 1999.  Based on the TERA approval, the applicant’s disability case was terminated and all findings and recommendations, to include separation with severance pay, were null and void.

7.  On 14 September 1999, an order was issued from Department of the Army U.S. Army Personnel Command (PERSCOM) promoting the applicant from Staff Sergeant E-6 to Sergeant First Class E-7 effective 1 October 1999.  However, since the applicant had been approved for retirement, the promotion was revoked since he was not then in a promotable status.

8.  On 7 December 1999, the applicant submitted additional medical information to PERSCOM who forwarded it to the Physical Disability Agency for review.  The information included:

a.  An all “ones” profile dated 2 December 1999 showing resolved neck pain with no assignment or duty limitations and return to full duty.

b.  Medical statements from the Fort Benning Martin Army Community Hospital:
(1)  from the orthopedic clinic on 29 October 1999 stating that the applicant’s neck pain was resolved;

(2)  from the neurosurgical clinic on 4 November 1999 stating that the carpal tunnel syndrome was resolved with no pain, no neurosurgical intervention indicated, and applicant can return to duty without limitations; 

(3)  from the neurological clinic on 19 November 1999 stating that the applicant’s neck pain was completely resolved, that his carpal tunnel syndrome demonstrated no pain on exam, and recommended that he return to full duty with no limitations.

9.  However, there were no recommendations from any of these medical personnel for a review by the MEB to amend the board’s original disability findings on the applicant.  Further, on the applicant’s 2 December 1999 physical profile is penned the comment, “Patient will not request MEB.”  This profile and comment was approved by the Colonel Deputy Commander for Medical Services, Martin Army Community Hospital, Fort Benning.

10.  A memorandum from the rear detachment commander of 1st Battalion, 
10th Field Artillery, Fort Benning, stated, “At the time of (the applicant’s) retirement, his physical condition had not improved to the point to allow him to perform the duties of his primary MOS.  (The applicant) was informed of his status by his Battery Commander …, his Battalion Commander …, and his Division Artillery Commander ….  On each occasion, (the applicant) was counseled in writing that his medical condition had not changed and that his early retirement would proceed.”

11.  A memorandum from the PDA states that all the above medical documents were reviewed but that no addendum to the MEB was provided reflecting that the applicant’s condition now met retention standards or changing any of the diagnoses on his medical board in any way.  The PDA also noted that there was no input provided from his commander indicating that the applicant then demonstrated the ability to perform adequately in his MOS 13F30.  The applicant was informed of the PDA decision by a letter dated 17 December 1999 from the U.S. Army Personnel Command Inspector General.

12.  Due to the applicant’s submission of the above medical and physical performance information and request that his TERA retirement be revoked, his retirement date was changed to 31 January 2000 to allow consideration of the new material.  The PDA recommended to PERSCOM that the early retirement under TERA provisions not be revoked based on the above reasons.  PERSCOM concurred and the applicant was accordingly retired on 31 January 2000.

13.  The PDA provided an advisory opinion to this Board on this case stating most of the above information and recommended denial of the applicant’s request for reinstatement on active duty based on evidence provided not showing a change of the original diagnosis of disability.  The applicant was given the opportunity to provide a rebuttal, which he did.  The applicant provided a 
29 March 2000 neurological evaluation performed by a civilian medical doctor board certified in neurology.  The evaluation was based on an office examination of the applicant.  The doctor’s impressions were that: 1) the patient has a full range of movements to the neck and back with no paraspinal muscle spasm; 2) the patient has made an excellent recovery from his injury; 3) he could find no evidence of neurological dysfunction; 4) the MRIs of 1996 and 1999 (performed by the Army) were reviewed with comment that the C3-4 and midcervical degenerative changes are present and the 1999 scan is improved compared to the 1996 scan; 5) he can see no reason for the patient not to return to full duty without restriction.  The applicant also provided an unsigned letter from the Department of Veterans Affairs stating that as of 27 March 2000, his disabilities are less than 10% disabling.

14.  The TERA program (Temporary Early Retirement Authority) provides soldiers with 15 to 19 years of service, who also have been found to have 30% or less disability, the advantage to retire from the service rather than to be separated from the service with only severance pay.  There is currently no provision for recalling to active duty soldiers retired under TERA.

CONCLUSIONS:

1.  After the approval of the applicant’s retirement under TERA, the applicant’s physical condition and ability to perform his MOS duties were re-evaluated by medical personnel and commanders.  The Army medical personnel, while finding some improvements in his physical condition, did not find enough change to the original diagnoses to recommend the applicant for review of those diagnoses by the MEB or the PEB.  The medical personnel who gave him an all “one” profile specifically stated that a MEB to reevaluate the applicant would not be requested.  Although the applicant passed an Army Physical Fitness Test and a tactical road march after being approved for retirement because of disability, there is no evidence that a commander stated that the applicant was able to perform the duties of his MOS nor is there evidence that a commander recommended the applicant’s retention or a MEB reevaluation.  Evidence does show that the applicant was counseled by his chain of command to the effect that his medical condition had not changed sufficiently and that his retirement would proceed.  The PDA reviewed all the medical and command information and determined that there was insufficient evidence to change the original diagnoses of disabilities.

2.  The applicant did rebut the advisory opinion by providing a recent neurological evaluation by a civilian doctor.  The civilian doctor only performed a physical exam and did not obtain a new MRI or make other lab tests.  The MEB and PEB were based on extensive medical testing and diagnosis by a staff of various medical specialists and senior medical personnel.  It is noted that the civilian doctor reviewed the applicant’s previous MRIs and did identify midcervical degenerative spinal conditions, the main diagnosis that resulted in the applicant’s early retirement.  The civilian doctor did not address the other major MEB diagnosis of carpal tunnel syndrome.

3.  The information provided about the applicant’s VA disability rating being less that 10% does not address the applicant’s fitness for military duty.  VA disability ratings concern a veteran’s ability to obtain civilian employment and perform in a civilian occupation.  It does not address fitness for military duty.

4.  The applicant’s record of prior duty performance was of such high quality that he was selected for promotion to Sergeant First Class E-7 on 1 October 1999.  He was not allowed to keep the promotion because of disabilities developed while rendering that high quality service and dedication to duty.  As a matter of fairness and as an exception, the applicant should be retired in the rank of E-7 which he justly earned by his dedication, loyalty, fidelity, and superior performance of duty.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected for the individual concerned, as an exception, by showing that he was promoted to Sergeant First Class E-7 on 1 October 1999 and retired on 
31 January 2000 as an Sergeant First Class E-7.

2.  That he be entitled to all pay and allowances by virtue of the promotion.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__AO__  __LE___  __VC____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___ Arthur A. Omartian ____
		        CHAIRPERSON

INDEX

CASE ID	AR2000035803	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000516	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	PART	
REVIEW AUTHORITY		
ISSUES         1.131	Promotion	
2.110.03	Restatement	
3.		
4.		
5.		
6.